By LINDSEY ROWE, SEATTLE POST-INTELLIGENCER REPORTER

Updated 10:00 pm, Wednesday, July 21, 2004

The Colville Tribes announced a lawsuit Wednesday against a smelting company in British Columbia asking it to pay -- per U.S. government order -- to study the effect of decades of sludge in Lake Roosevelt in Eastern Washington.

Officials with Teck Cominco Metals Ltd., whose smelter is 10 miles north of the border in Canada, don't think that the company should have to comply with the U.S. Superfund law, the legislation set up to clean up the nation's worst toxic waste sites.

The tribes want to hold it responsible under U.S. law because the contamination came by way of the Columbia River and was deposited into Lake Roosevelt on this side of the border.

"We have a situation where we know there is pollution, we know where the pollution comes from, yet the polluter refuses to be held accountable," said Joseph Pakootas, chairman of the Colville Business Council.

The Confederated Tribes of the Colville Reservation are suing for all fines and penalties that Teck Cominco was ordered to pay to the United States, including $27,500 a day since it has refused to comply with the Environmental Protection Agency order. The tribes said they would not gain personally from the lawsuit.

Teck Cominco executives were disappointed to hear of yesterday's announcement.

"This suit will result in time and money being wasted on litigation, which could best be used to address the public's environmental concerns regarding Lake Roosevelt," said Doug Horswill, senior vice president.

For most of the last century, Teck Cominco's smelter in Trail, B.C., has released more than 20 million tons of a mining waste product known as slag into the Columbia River. After spending $1 billion to upgrade the smelter's environmental performance, the company now meets the highest environmental and health criteria in Canada and the United States, Horswill said.

The tribes petitioned the EPA to examine the lake in the late 1990s, and the agency found that the levels of pollution could qualify for Superfund status. When Teck Cominco refused to agree to terms under the Superfund law, the EPA issued an order requiring it to pay to study the contamination. But Teck Cominco balked at the terms of the order.

Horswill said that Teck Cominco had offered the EPA $13 million to fund independent human-health and ecological studies and to clean up metal contamination attributable to their operations to ensure that the lake was safe.

That money was rejected by the EPA and the tribes because it wouldn't have been regulated under Superfund laws.

Horswill reiterated that a Canadian company shouldn't have to comply with American laws, but that Teck Cominco still wants to help clean up the lake.

But EPA spokesman Bill Dunbar said yesterday, "Teck Cominco and not the American taxpayer should fund and perform the investigation required by EPA's unilateral order."

The Canadian government has suggested a bilateral panel to create a plan for cleanup, but the tribes fear that the panel would slow the process and lead to a decision that wouldn't meet Superfund goals.

"There's only so much patience that tribal members have waiting for people to act," said Richard Du Vey, an attorney for the tribe.

Pakootas said in a news conference yesterday that the people in his community are "concerned about the possible health effects, the natural resource damages; there's a fear of the unknown" regarding the pollution in the lake. D.R. Michel, another Colville council member, added later that tribal elders are afraid of swimming in the lake, of eating the fish and even of walking on the beaches, which show evidence of the sludge in "black sand."

The tribes will now wait 90 days for Teck Cominco to answer the complaint in U.S. District Court in Spokane.

Teck Cominco said it is leaving the $13 million offer on the table and will fight the litigation. "We have to defend ourselves, and we'll do that vigorously," Horswill said.